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Patna High Court

Abhishek KumarversusThe Bihar Police Building Construction Corporation and Ors

Decided
Disposal
DISMISSED

Holding

Once a compassionate appointment is consummated, the dependent cannot be considered again for a higher post.

Summary

The petitioner, son of a deceased employee of the Bihar Police Building Construction Corporation, was appointed on compassionate grounds to a Class‑IV orderly post in 2015 after a long delay caused by the corporation's financial constraints. He later sought a writ directing the corporation to appoint him to a Class‑III post, citing his Ph.D. qualification and a corporate rule that supposedly allowed appointment to a suitable post. The respondents argued that once a compassionate appointment is made and the appointee has joined, no further consideration for a higher post is permissible. The court relied on Supreme Court precedents that once the right to compassionate appointment is consummated, the dependent cannot seek a higher post, emphasizing the humanitarian purpose of such appointments. Accordingly, the petition was dismissed.

Issues considered

  • Whether a dependent who has already been appointed on compassionate grounds can seek re‑consideration for a higher post.
  • Whether the petitioner’s Ph.D. qualification entitles him to a Class‑III appointment despite his earlier Class‑IV appointment.
  • Interpretation of “suitable post” under Rule 5 of the Dying‑In‑Harness Rules, 1974 in the context of compassionate appointments.

Subjects

  • compassionate appointment
  • dependent of deceased employee
  • higher post
  • Rule 5
  • Dying-In-Harness Rules 1974
  • eligibility
  • class IV
  • class III
  • humanitarian consideration

Judgment

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.1316 of 2017
     ======================================================
     Abhishek Kumar S/o Late Rajnandan Prasad, Resident of village -
     Mamurabad, P.O. Mirchaiganj, P.S. Nalanda, District - Nalanda

                                                              ... ... Petitioner/s
                                      Versus
1.   The Bihar Police Building Construction Corporation, Kautilya Nagar, Patna
     through Managing Director.
2.   Managing Director, Bihar Police Building Construction Corporation,
     Kautilya Nagar, Patna.
3.   Secretary, Bihar Police Building Construction Corporation, Kautilya Nagar,
     Patna.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :           Mr. Sanjay Kumar, Advocate
     For the Respondent/s   :           Mr. Prasoon Sinha, Sr. Advocate
                                        Mr. Prabhat Kumar, Advocate
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
     ORAL JUDGMENT

     Date : 05-01-2026

                     Heard learned counsel for the parties.

                     2. The petitioner has filed the instant application for

      the following relief:

                                                “1. That the present petition is
                                being     preferred      for    issuance       of   an
                                appropriate          writ/writs           order/orders
                                direction/directions to concern authorities
                                for consideration and his appointment
                                against cadre/post in class-3 instead to
                                class-4 by virtue of death to his father Late
                                Rajnandan Prasad as an employee of
                                corporation in light of eligibility suitability
                                and qualification on basis of facts and for
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                                 other necessary relief/reliefs to the basis of
                                 facts and circumstances of case enumerated
                                 and stated hereinafter.”

                         3. The case of the petitioner in brief is that his

         father who was working in the Bihar Police Building

         Construction Corporation died in harness on 4.9.1997.

                         4. The       petitioner      filed   his   application   for

         appointment on compassionate ground, however the financial

         condition of the Corporation being very poor, no appointments

         were being made. It was only in the year 2014 that on the

         financial condition of the Corporation improving that a

         committee headed by the Chief Engineer of the Corporation was

         constituted to review the applications pending for appointment

         on compassionate ground.

                         5. By office order no. 365 of 2015 dated 2.12.2015,

         17 applicants including the petitioner herein were appointed on

         compassionate ground as a Class-IV employee on the post of

         orderly/peon.

                         6. The petitioner joined his duties and started

         discharging the same.

                         7. It is subsequent to his having joined duties in the

         above capacity on the Class-IV post that the petitioner has now

         moved this Court for a direction to the respondents to consider
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         his appointment against a Class-III post as the petitioner is a

         Ph.D. It is submitted by learned counsel appearing for the

         petitioner that the petitioner holding the Ph.D. degree on the

         date of his application for compassionate appointment, in view

         of the officer order no. 109 of 2015 dated 30.1.2015, the

         petitioner should have been appointed on Class-III post instead

         of Class-IV.

                         8. In response, it is submitted by learned counsel

         appearing for the respondents that the employee i.e. the father of

         the petitioner having died in harness on 4.9.1997, the

         application of the petitioner came to be filed only in the year

         2009 and because of the poor financial condition of the

         Corporation he was appointed in the year 2015. It is further

         submitted that the petitioner has no right to be appointed on a

         particular post or class of post and he also has no right for

         appointment on a higher post.

                         9. Heard learned counsel for the parties and perused

         the material on record.

                         10. The facts not in dispute are that the father of the

         petitioner who was working as an employee in the Corporation

         having died on 4.9.1997, the petitioner filed an application for

         appointment in the year 2009. As a result of the poor financial
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         condition      of     the     Corporation,       no    appointments     on

         compassionate ground was made. On the condition of the

         Corporation improving, a committee constituted under the

         chairmanship of the Chief Engineer considered the applications

         which were pending for appointment on compassionate ground

         and proceeded to appoint 17 persons including the petitioner

         herein on 2.12.2015 on a Class-IV post of orderly/peon.

                         11. It is not in dispute that the petitioner joined the

         said post and started working thereon and came to file the

         instant writ application in the year 2017 for a direction to the

         respondents to consider his appointment against Class-III post

         instead of Class-IV.

                         12. The Hon’ble Supreme Court in the case of

         Director of Town Panchayat and Ors. vs. M. Jayabal and

         Anr.; 2025 SCC OnLine SC 2794 held as follows:

                                                  “CLAIM FOR HIGHER POST
                                                  8. It is not in dispute that after
                                 the death of the employees in service, the
                                 dependent family members were offered
                                 appointment to a post for which an
                                 application was made by them. They had
                                 joined on that post without raising any
                                 objection. Meaning thereby, the financial
                                 crisis of the family was over as one of the
                                 dependents of the deceased was offered
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                                 appointment on compassionate basis in
                                 terms of the policy existing at the time of
                                 consideration of their application.
                                                  8.1. The next       issue which
                                 requires consideration by this Court is
                                 whether the dependent family member of a
                                 deceased employee, after being appointed on
                                 a post on compassionate basis, can later on
                                 seek indulgence of the employer to appoint
                                 him on a higher post.
                                                  9. The law on the issue is well-
                                 settled. The issue as to whether a second
                                 option can be exercised by the dependent
                                 family member of the deceased employee,
                                 once option for compassionate appointment
                                 has    already       been     exercised   and   the
                                 dependent family member of the deceased
                                 joined on the post to which appointment was
                                 given, was considered by this Court in State
                                 of Rajasthan v. Umrao Singh10. In this case,
                                 the deceased was working as Sub-Inspector,
                                 CID. On account of his death during service,
                                 application          for       appointment      on
                                 compassionate         basis    was    made.     The
                                 dependant was offered appointment on the
                                 post of L.D.C. The same was accepted and
                                 the incumbent joined on the post. Later, he
                                 requested for consideration of his case for
                                 appointment on the post of Sub-Inspector,
                                 being eligible for the same. This Court
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                                 negated the claim holding that once right for
                                 consideration          for     appointment    on
                                 compassionate post was consummated, any
                                 further or second consideration for a higher
                                 post on the ground of compassion would not
                                 arise. The relevant paragraph 8 is extracted
                                 below:
                                                  “8. Admittedly the respondent's
                                 father died in harness while working as Sub-
                                 Inspector, CID (Special Branch) on 16-3-
                                 1988. The respondent filed an application on
                                 8-4-1988         for    his    appointment    on
                                 compassionate ground as Sub-Inspector or
                                 LDC according to the availability of
                                 vacancy. On a consideration of his plea, he
                                 was appointed to the post of LDC by order
                                 dated      14-12-1989.        He   accepted   the
                                 appointment as LDC. Therefore, the right to
                                 be considered for the appointment on
                                 compassionate ground was consummated.
                                 No further consideration on compassionate
                                 ground would ever arise. Otherwise, it
                                 would be a case of “endless compassion”.
                                 Eligibility to be appointed as Sub-Inspector
                                 of Police is one thing, the process of
                                 selection is yet another thing. Merely
                                 because of the so-called eligibility, the
                                 learned Single Judge of the High Court was
                                 persuaded to the view that direction be
                                 issued under proviso to Rule 5 of Rules
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                                 which has no application to the facts of this
                                 case.”
                                 (emphasis supplied)
                                                  10. In view of the law laid down
                                 by this Court, it stands clarified that the
                                 once the right of an applicant to be
                                 considered            for        appointment      on
                                 compassionate               grounds     has     been
                                 consummated, no further consideration is
                                 warranted. Once dependent of a deceased
                                 employee         is    offered     employment     on
                                 compassionate          basis,     his   right   stood
                                 exercised. Thereafter, no question arises for
                                 seeking appointment on a higher post.
                                 Otherwise, it would be a case of ‘endless
                                 compassion’.
                                                  WHETHER THE DEPENDANT
                                 OF A DECEASED EMPLOYEE CAN SEEK
                                 EMPLOYMENT                  ON   COMPASSIONATE
                                 BASIS ON A HIGHER POST ?
                                                  11. This Court has also opined
                                 on the issue whether a dependent family
                                 member of a deceased employee can seek
                                 compassionate appointment on a post higher
                                 than the post which the deceased was
                                 holding, merely on the ground that he fulfils
                                 the criteria of such higher post. The opinion
                                 expressed is that the same will run contrary
                                 to the very object of grant of compassionate
                                 appointment, which is provided to enable the
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                                 family of the deceased employee to tide over
                                 sudden financial crisis. Employment on
                                 compassionate basis is provided only on
                                 account of humanitarian consideration.
                                 …….
                                                  12. Keeping in view the core
                                 objective         behind               appointment        on
                                 compassionate basis, as has been discussed
                                 in a catena of judgments of this Court, it is
                                 well settled that compassionate appointment
                                 is a relief against immense financial
                                 hardship      caused         by        the   sudden      and
                                 unforeseen loss of the earning member of a
                                 family. In such event, when a dependant
                                 family member of the deceased employee is
                                 provided appointment on compassionate
                                 basis, it is done in order to ensure that the
                                 family members are not subjected to
                                 impoverishment.                   Therefore,          such
                                 appointment          which        is     arising   out    of
                                 exceptional circumstances, cannot be used
                                 as a ladder to climb up in seniority by
                                 claiming a higher post merely on the basis
                                 that he/she is eligible for such post.”

                         13. The Hon’ble Supreme Court in the case of

         State of U.P. and Ors. vs. Premlata; (2022) 1 SCC 30 held as

         follows:

                                                  “10. Thus, as per the law laid
                                 down by this Court in the aforesaid
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                                 decisions, compassionate appointment is an
                                 exception to the general rule of appointment
                                 in the public services and is in favour of the
                                 dependants of a deceased dying-in-harness
                                 and leaving his family in penury and without
                                 any means of livelihood, and in such cases,
                                 out of pure humanitarian consideration
                                 taking into consideration the fact that unless
                                 some source of livelihood is provided, the
                                 family would not be able to make both ends
                                 meet, a provision is made in the rules to
                                 provide gainful employment to one of the
                                 dependants of the deceased who may be
                                 eligible for such employment. The whole
                                 object       of       granting    compassionate
                                 employment is thus to enable the family to
                                 tide over the sudden crisis. The object is not
                                 to give such family a post much less a post
                                 held by the deceased.
                                                   10.1. Applying the law laid
                                 down by this Court in the aforesaid
                                 decisions and considering the observations
                                 made hereinabove and the object and
                                 purpose for which the appointment on
                                 compassionate ground is provided, the
                                 submissions on behalf of the respondent and
                                 the interpretation by the Division Bench of
                                 the High Court on Rule 5 of the 1974 Rules,
                                 is required to be considered.
                                                   10.2. The Division Bench of the
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                                 High Court in the present case has
                                 interpreted Rule 5 of the 1974 Rules and has
                                 held that “suitable post” under Rule 5 of the
                                 1974 Rules would mean any post suitable to
                                 the     qualification        of      the        candidate
                                 irrespective of the post held by the deceased
                                 employee. The aforesaid interpretation by
                                 the Division Bench of the High Court is just
                                 opposite to the object and purpose of
                                 granting the appointment on compassionate
                                 ground.      “Suitable       post”        has        to   be
                                 considered, considering status/post held by
                                 the deceased employee and the educational
                                 qualification/eligibility criteria is required to
                                 be considered, considering the post held by
                                 the deceased employee and the suitability of
                                 the post is required to be considered vis-à-
                                 vis the post held by the deceased employee,
                                 otherwise            there        shall         be        no
                                 difference/distinction              between               the
                                 appointment on compassionate ground and
                                 the regular appointment. In a given case, it
                                 may happen that the dependant of the
                                 deceased employee who has applied for
                                 appointment on compassionate ground is
                                 having the educational qualification of Class
                                 II or Class I post and the deceased employee
                                 was working on the post of Class/Grade IV
                                 and/or lower than the post applied, in that
                                 case the dependant/applicant cannot seek
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                                 the appointment on compassionate ground
                                 on the higher post than what was held by the
                                 deceased employee as a matter of right, on
                                 the ground that he/she is eligible fulfilling
                                 the eligibility criteria of such higher post.
                                 The aforesaid shall be contrary to the object
                                 and purpose of grant of appointment on
                                 compassionate ground which as observed
                                 hereinabove is to enable the family to tide
                                 over the sudden crisis on the death of the
                                 breadearner.           As     observed           above,
                                 appointment on compassionate ground is
                                 provided         out   of     pure     humanitarian
                                 consideration taking into consideration the
                                 fact that some source of livelihood is
                                 provided and family would be able to make
                                 both ends meet.
                                                  10.3. In the present case, as
                                 observed          hereinabove,       initially      the
                                 respondent applied for appointment on
                                 compassionate ground on the post of
                                 Assistant        Operator     in     Police      Radio
                                 Department. The same was not accepted by
                                 the Department and rightly not accepted on
                                 the ground that she was not fulfilling
                                 requisite eligibility criteria for the post of
                                 Assistant         Operator.        Thereafter       the
                                 respondent again applied for appointment
                                 on the compassionate ground on the post of
                                 Workshop Hand. The case of the respondent
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                                 was considered, however, she failed in the
                                 physical      test    examination,     which    was
                                 required as per the relevant recruitment
                                 rules of 2005. Therefore, thereafter she was
                                 offered     appointment       on     compassionate
                                 ground as Messenger which was equivalent
                                 to the post held by the deceased employee.
                                 Therefore, the appellants were justified in
                                 offering the appointment to the respondent
                                 on the post of Messenger. However, the
                                 respondent refused the appointment on such
                                 post.
                                                   11. In view of the above and for
                                 the reasons stated above, the Division Bench
                                 of the High Court has misinterpreted and
                                 misconstrued Rule 5 of the 1974 Rules and
                                 in observing and holding that the “suitable
                                 post” under Rule 5 of the Dying-In-Harness
                                 Rules, 1974 would mean any post suitable to
                                 the qualification of the candidate and the
                                 appointment on compassionate ground is to
                                 be offered considering the educational
                                 qualification of the dependant. As observed
                                 hereinabove, such an interpretation would
                                 defeat      the      object   and     purpose    of
                                 appointment on compassionate ground.”

                         14. Coming to the facts of the instant case, the

         petitioner already having been given appointment on Class-IV

         post in the year 2015 wherein he joined and started working, in
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                      view of the law laid down by the Hon’ble Supreme Court in the

                      judgments referred to herein above, the Court finds no merit in

                      the plea of the petitioner for a direction to the respondents to

                      consider his case once again for appointment against Class-III

                      post.

                                      15. The application is dismissed.




                                                  (Partha Sarthy, J)
sauravkrsinha/-
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          6.1.2026
Transmission Date       NA


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